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EU investment protection after the ECJ Opinion on Singapore: Questions of competence and coherence

25-03-2019

Investment protection continues to be a controversial issue, as shown in particular during the negotiations on the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA). To address stakeholder concerns, the EU has moved from traditional investor-state dispute settlement arrangements towards introducing bilateral investment court systems in new agreements and pursuing the goal of establishing a permanent multilateral investment court. At the same time, the European Court of Justice defined the limits of the Union’s exclusive competence in its opinion of 16 May 2017 with regard to the EU-Singapore Free Trade Agreement (FTA), which has led to the splitting of new FTAs into two parts, treating investment protection separately. Adding to the complex picture, a plethora of EU Member States’ bilateral investment treaties also remain in place. The workshop held by the Committee on International Trade took stock of existing EU investment protection provisions and analysed the options for a coherent and predictable dispute settlement system in line with the EU Treaties.

Investment protection continues to be a controversial issue, as shown in particular during the negotiations on the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA). To address stakeholder concerns, the EU has moved from traditional investor-state dispute settlement arrangements towards introducing bilateral investment court systems in new agreements and pursuing the goal of establishing a permanent multilateral investment court. At the same time, the European Court of Justice defined the limits of the Union’s exclusive competence in its opinion of 16 May 2017 with regard to the EU-Singapore Free Trade Agreement (FTA), which has led to the splitting of new FTAs into two parts, treating investment protection separately. Adding to the complex picture, a plethora of EU Member States’ bilateral investment treaties also remain in place. The workshop held by the Committee on International Trade took stock of existing EU investment protection provisions and analysed the options for a coherent and predictable dispute settlement system in line with the EU Treaties.

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Prof. Dr. Steffen HINDELANG, LL.M., Department of Law, University of Southern Denmark, and Dr. Jurgita BAUR, Germany; and Prof. Dr. Stephan SCHILL, LL.M., Amsterdam Center for International Law, University of Amsterdam, the Netherlands